#copyrightweek

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic is the “Public Domain.” The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.

Creative Commons has long upheld that faithful digital reproductions of works in the public domain are also in the public domain, adhering to the U.S. District Court ruling of Bridgeman Art Library v. Corel Corp. that “exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality” 1. Though this ruling is not a binding precedent, it remains highly influential as a legal ruling in the U.S. and elsewhere. Its real world applicability is less well-known. This is why, where possible, we recommend that institutions, especially those curating and providing access to public domain works of cultural heritage, use the CC0 public domain dedication for their digital reproductions where there might be any element of originality that might give rise to doubt.

Creative Commons currently offers two public domain tools, CC0 and the Public Domain Mark, which can be confused with each other but are very different tools. CC0, like the CC licenses, is a legally operable tool backed by a legal document that we like to call the legal code layer of our tools. Because it is legally operable, copyright owners may use it to relinquish their copyright and related rights in a work, effectively placing that work into the public domain. Where it is not legally possible to relinquish copyright, the tool defaults to CC BY without attribution or any other conditions (CC BY is the most liberal license on the spectrum of CC licenses). The Public Domain Mark, on the other hand, is not a legally operable tool, but merely a standard label that one may place on a work to indicate that its copyright has expired or is otherwise in the public domain worldwide. You can read more about both of these tools here.

We recommend using CC0 for digital reproductions of public domain works where there is reason for users to be concerned that the reproduction itself is subject to copyright. If nothing else, it clearly signals to users that the institution is proactively relinquishing any copyrights they may have in a digital reproduction, furthering its mission to provide greater public access to works of cultural heritage. From the institution’s standpoint, they are not making any guarantees about the public domain work itself, but removing any doubt for the user around any element of originality they may have in the digital reproduction.

Here are a few great cases of institutions committed to strengthening and growing our public domain.

Rijksmuseum

The Rijskmuseum is the Dutch National Museum in the The Netherlands, founded in 1800, that contains many of the original artworks of European masters such as Rembrandt and Vermeer, in addition to high resolution images of these original artworks. For 10 years, from 2003-2013, much of the physical museum — including 1 million physical items — was closed for renovations. During this period, the museum’s marketing department pushed for the release of its high resolution images of public domain works in order to keep the public engaged throughout the renovation period and as a way to extend the reach of the museum beyond its limited physical showcase. They released 150,000 high resolution images (each as large as 200 MB) into the public domain using CC0. They abided by the principle of unrestricted access to the digital public domain; as in the U.S., faithful digital reproductions of public domain works are considered public domain in Europe. After the release, the museum saw many benefits, including international exposure for the museum, especially during a time when much of the physical museum was closed; new audiences with developers, designers, and related creative industries; and an increase in revenue made from public domain image sales. For more details, see Tim’s post which links to the in-depth case study.

Statens Museum for Kunst

The Statens Museum for Kunst, aka the National Gallery of Denmark in Copenhagen, joined the Google Art Project in 2011. At this point, they realized they were giving use rights of images to a private company and could no longer justify charging the public for the same rights. As part of a pilot project, they initially released 100 educational videos and 160 high resolution image files (each as large as 440 MB) of Danish, Nordic and European public domain art under CC BY. Afterwards, they moved to CC0 for their images. Since their release, SMK’s images and videos have been featured on Wikipedia. SMK staff found that their understanding of quality and control changed significantly after releasing the images: “[Our public domain collections] don’t belong to us; they belong to the public. Free access ensures that our collections continue to be relevant to users now and in the future. We’re here to look after them and make them available and useful to the public. Use = value.” Read the case study contributed directly by museum staff.

New York Public Library

The New York Public Library has long been the haven of researchers and bibliophiles alike. Map lovers can join the group with NYPL’s open access maps initiative which has digitized and released more than 20,000 digital reproductions of cartographic works in the public domain. In the Lionel Pincus & Princess Firyal Map Division’s own words, “To the extent that some jurisdictions grant NYPL an additional copyright in the digital reproductions of these maps, NYPL is distributing these images under a Creative Commons CC0 1.0 Universal Public Domain Dedication.” In addition to public domain maps, NYPL has also used CC0 to dedicate 1 million of its bibliographic metadata records into the public domain.

Europeana

We want to end the post on Europeana, the digital library for all of Europe and a model for libraries in rights information mark-up. Europeana has identified more than 16.5 million digital objects as being in the public domain (via CC0 or the Public Domain Mark) or under one of the CC licenses, in addition to dedicating 30 million metadata records to the public domain using CC0. Users can browse and search by re-use rights — including all six CC licenses and both public domain tools.

These four cases exemplify only a few institutions that are working to preserve our public domain. For uses of CC0 specific to data, see and add to our wiki page. For more great uses of CC tools and licenses by cultural heritage institutions, check out these slides and add to our wiki page tracking uses by GLAM institutions (Galleries, Libraries, Archives, Museums).

Have a great use case to share about the public domain? Leave us a note in the comments.

The public domain is the DNA of creativity. Whereby current copyright law requires permission in order to use a work, the public domain is a copyright-free zone whereby anyone can use the work for any purpose without restriction under copyright law. One way works rise into the public domain is when the copyright protection term expires. Over the years, copyright terms have been extended again and again, making it really difficult for creative works to enter the public domain. While most early copyright terms lasted only a few years, a majority of copyright terms today last for the duration of the life of the author + 50-100 years. Increasing copyright terms have stymied creativity, drastically raised the prices of books, and exacerbated the orphan works problem (where authors of works can no longer be located to ask permission to use a work).

But the extremely long term of copyright is not the only problem for the public domain. The contours of copyright law grant certain rights to the author automatically, and without any necessary action from the creator. This seems like a reasonable thing to do for some creators, but it doesn’t support those who simply wish to make their content freely available, or who wish to opt out of copyright in the first place.

Tools

Authors should be able to say what they want to do with their creativity. The Creative Commons license suite provides a flexible way for creators to indicate the rights they wish to grant and those they wish to retain. Creators can use the CC licenses, which are a nonexclusive license that relies on existing copyright law for enforceability. And the CC license lasts for as long as the copyright term, after which the work will then be in the public domain. The CC licenses help to lower transaction costs by communicating certain rights in advance. That way, users don’t have to hunt down authors to get their permission to use a work. The permission is granted in advance by the author, so long as the user follows the terms of the license.

Another way for works to enter the public domain is when creators proactively waive their copyrights–they can place works in the public domain before the copyright term is over. Creative Commons has developed the CC0 (read “CC Zero”) Public Domain Dedication tool to allow authors to do this. The CC0 tool is used by authors who want to release all copyrights to their work and fully break down all barriers to downstream reuse.

CC0 enables scientists, educators, artists and other creators and owners of copyright- or database-protected content to waive those interests in their works and thereby place them as completely as possible in the public domain, so that others may freely build upon, enhance and reuse the works for any purposes without restriction under copyright or database law.

CC0 allows authors to place their work into the public domain prior to the expiration of the copyright term. But what about works that are already in the public domain, such as really old works where it’s clear that the copyright has expired? To help label those works as already part of the public domain, CC has developed the Public Domain Mark.

[The] Public Domain Mark enables works that are no longer restricted by copyright to be marked as such in a standard and simple way, making them easily discoverable and available to others.

One particularly interesting use of the Public Domain Mark is from Europeana. Whereas Europeana uses the CC0 tool to dedicate to the public domain the metadata that describes cultural works (so anyone can use it to create interesting representations or applications), they use the Public Domain Mark to signal which of the works in their digital collection (e.g. the very old paintings, sculpture, etc.) are in the public domain already because the copyright term has clearly expired. In this way, it’s easy for users to filter the catalog to view works that are already in the public domain and which may be used for any purpose because their copyrights have expired.

Advocacy & policy change

Even with tools making it easier for authors to communicate the rights they want attached (or not) to the works they create, we need to support public policy efforts to increase access to the public domain. One such effort is led by the International Communia Association, whose mission is “to foster, strengthen and enrich the public domain.” Communia originally developed the Public Domain Manifesto (which you can sign here), and also has generated 14 policy recommendations that lay out ways that the public domain should be supported through public policy changes and community action. Recommendations include reducing the term of copyright protection overall, making the process of identifying public domain works simpler by harmonizing rules of copyright duration and territoriality, and mandating that digital reproductions of works in the public domain should also belong to the public domain.

Another way to support the public domain is to highlight and champion community-generated norms. For instance, Creative Commons has been a longtime supporter of the Panton Principles, which advocates that scientific data should be made available in the public domain.

By open data in science we mean that it is freely available on the public internet permitting any user to download, copy, analyse, re-process, pass them to software or use them for any other purpose without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. To this end data related to published science should be explicitly placed in the public domain.

We can also support the development of public domain policies where they make the most sense. Creative Commons and other groups have provided feedback to policy consultations on a variety of areas whereby the public could benefit from the adoption of public domain policies. For example, in the recent consultation in the European Union on public sector information (PSI), we argued that there should be no conditions attached to the re-use of PSI.

The best case scenario would be for public sector information to be in the public domain, exempt from copyright protection altogether by amending national copyright laws. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into the worldwide public domain to ensure unrestricted re-use.

Building and defending a robust public domain requires work on multiple fronts–from the ongoing development and support of tools that can grow the pool of creative works in the public domain–to the active participation in policy change and copyright reform. While content in the public domain is owned by no one, the responsibility for strengthening this absolutely crucial resource should be shared by all who care about the future of creativity.

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